LD3007 Tort

Public Nuisance: Lecture 14A

Objectives

To understand the requirements that need to be satisfied to establish liability for public nuisance
To consider defences to claims in public nuisance
To be able to advise on remedies available after establishing a claim in public nuisance
To differentiate between private and public nuisances

Private and Public Nuisance

Private nuisance
There is a private nuisance where the defendant’s use of their land involves an
unreasonable interference with the claimant’s use or enjoyment of the claimant’s
neighbouring land. Provided the conditions are met, such as unreasonable interference with
the claimant’s land, and if there is no sustainable defence, the claimant can bring a civil
claim and seek an injunction and/or damages.
Public nuisance
A public nuisance arises where the defendant’s conduct materially affects the reasonable
comfort and convenience of a class of Her Majesty’s subjects. Unlike private nuisance this
does not need to arise out of the defendant’s use of land, and the claimant also might not
have an interest in land. Normally, public nuisances are prosecuted as offences in the
criminal courts. However, a claimant who has suffered special damage over and above that
suffered by other members of the affected group can bring a civil claim.

Definition of Public Nuisance

JR Spencer Public Nuisance – A Critical Examination (1989) CLJ 55

Described public nuisance as “a rag-bag of odds and ends which we should nowadays call ‘public
welfare offences’”.

Attorney General v PYA Quarries Ltd [1957] 2 QB 169 per Romer LJ: A public nuisance is

‘...an act or omission which materially affects the reasonable comfort and convenience of life
of a class of Her Majesty’s subjects. The sphere of the nuisance may be described generally
as ‘the neighbourhood’; but the question whether the local community within that sphere
comprises a sufficient number of persons to constitute a class of the public is a question of
fact in every case’.

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R v Rimmington; Goldstein [2006] 1 AC 459 Lord Bingham of Cornhill at [10], [36]:

Criminal public nuisance is where a person:

“… does an act not warranted by law, or omits to discharge a legal duty, [where] the effect of
the act or omission is to endanger the life, health, property, or comfort of the public, or to
obstruct the public in the exercise or enjoyment of rights common to all Her Majesty’s
subjects.”

You will notice some differences between Romer LJ and Lord Bingham:

 Lord Bingham would allow lawful excuse as a defence

 Romer LJ’s formulation covers reasonable comfort and convenience of life, whereas Lord
Bingham’s test covers endangering life, health, property or comfort
 Romer LJ only looks to protect a class of people. Lord Bingham appears to refer to “all”
people. However, when applying the test to the cases before the HL Lord Bingham only
required the defendant’s conduct to affect “a section” of the public (at [38]).

Requirements for Public Nuisance

The general rule is that the Claimant must prove that there was:

(1) an unreasonable interference with the comfort and convenience of life;

(2) to a class of Her Majesty’s subjects;

(3) which causes special damage to the Claimant over and above damage to the public;

(4) for which the Defendant is responsible.

Without element (3) there will be the potential of a criminal prosecution against the defendant. It is
element (3) that allows a particular claimant to bring a civil claim against the defendant.

(1) Unreasonable interference with comfort and convenience of life

Noise and smells

Halsey v Esso Petroleum [1961] 1 WLR 683

The defendant operated an oil dept in a residential area of Fulham, London. The claimant’s house
was directly opposite the depot.

Held: While a number of problems related to the operation of the depot were actionable private
nuisances,

(a) Acid smuts from the boilers which damaged the claimant’s car parked in the public road; and
(b) Noise from lorries on the road entering and leaving the depot

were actionable public nuisances.

Contrast these with the following from the same case, which were held to be private nuisances:

(a) Smell of oil which was unpleasant;

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 (b) Noise from boilers;
(c) Noise from lorries in the depot.
The time when the noise was generated was important. Noise in mid-morning might not be
unreasonable whereas the same noise at 10pm might be an actionable private nuisance.

Obstructions on and projections over highways

These can give rise to public nuisances:

Dymond v Pearce [1972] 1 All ER 1142

Defendant parked his lorry, which was 7.5 feet wide, under a street light on a 24 foot wide dual
carriageway. He intended to leave it parked there between 6pm and 4am. At lighting up time the
driver put on the lorry’s tail lights. At 9.45pm a motor cycle with the claimant as its pillion passenger
collided with the rear of the lorry.

The claimant had a valid claim in negligence against the motorcyclist, who was not paying proper
attention to the road ahead. Was there also a claim against the lorry driver in public nuisance?

Sachs & Stephenson LJJ said a defendant who obstructed the highway could be liable in public
nuisance even though a claim in negligence might fail, for example, if the rear lights of the lorry had
unexpectedly failed, so that the unlighted obstruction is the cause of the accident.

Edmund Davies LJ: the lorry driver would have been liable if the presence of the parked-up lorry was
a “danger” (unless the lorry driver could show sufficient justification or excuse).

Paine v Partrich (1741) Carth 191, Holt CJ:

Delaying someone in their journey for “a little while” is not a public nuisance. On the other hand,
causing an obstruction that results in the loss of the claimant’s horse, or results in the claimant
falling into a trench on the highway, is both a public nuisance and special damage.

Forming a queue on a highway

If a crowd forming a queue causes an obstruction, this can be a public nuisance.

Lyons v Gulliver [1914] 1 Ch 631

Defendant operated the Palladium Theatre of Varieties music hall in Argyll Street near Oxford Circus.
They had morning and afternoon performances every day. They opened their doors 15 minutes
before performances, and prevented customers assembling in front of the theatre, with the result
that large queues, often 5 deep, formed down the street. Often for up to an hour before
performances. The Plaintiff was the lessee of a lace merchant and drapery business 3 shops down
from the theatre, and complained there was a public nuisance.

Cozens Hardy MR and Swinfen Eady LJ made it clear that what they said did not mean that a theatre
queue is a nuisance in all times and places. However, this one was. Having the two daytime
performances, combined with the arrangements which inevitably meant there would be crowds

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outside the Plaintiff’s business was “… such an unreasonable use and obstruction of the highway,
and such obstruction and annoyance, as amounts in law to a public nuisance.” The Defendant knew
that in the natural course of events there would be an obstruction in the street.

Also, the Plaintiff had been specifically injured, because the crowd obstructed access to the Plaintiff’s
business, deterring customers. There was evidence from particular customers to the effect they
were not prepared to push through the crowd, and had stopped going to the Plaintiff.

Picketing

Ward, Lock & Co Ltd v Operative Printers’ Assistants’ Society 22 TLR 327

Picketing is not per se a common law nuisance. In this case the picketing was peaceful.

Thomas v NUM [1986] Ch 20, Scott J

In this case 50-70 pickets assembled at the colliery gates every day. Sometimes their numbers
swelled to several hundred. About 12 miners wanted to work, and they were driven into the site,
with verbal abuse and threats of violence coming from the strikers. An injunction was granted, but
the judge is not always clear about which tort he is discussing. What is clear is:

(a) The picketing outside the mine could only be a nuisance if it was outside the immunity
granted to peaceful picketing by employment law
(b) There was no public nuisance that the claimants could rely on outside the mine, because:
a. On the facts the claimants were able to enter the colliery in the vehicles they used,
so their passage along the highway was not obstructed; and
b. The claimants could not establish any special damage
(c) There was also picketing of the working miners’ homes and the college where one of them
was studying. Scott J at p 65:
“Regular picketing at the house of a working miner would represent, in my opinion,
regardless of the number of people involved and regardless of the peaceful nature of their
conduct, per se common law nuisance.”

Harassment on the highway

Thomas v NUM [1986] Ch 20, Scott J at p 64

“Suppose an individual were persistently to follow another on a public highway, making rude
gestures or remarks in order to annoy of vex. If continuance of such conduct were threatened
no one can doubt” it would be restrained by injunction.

Obstruction to right of navigation

Rose v Miles (1815) 4 M&S 101

The defendant moored a barge right across a publicly navigable creek. This obstructed the claimant,
who was navigating his barges, laden with merchandise, along the creek. It was a deliberate and
persistent blockage by the defendant, probably aimed at the claimant. As a result the claimant had
to transfer the goods onto carts and take the goods across country at great expense.

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Held: this was an actionable public nuisance. Further, the time and money spent in the land
transport of the goods was plainly special damage.

Tate & Lyle Industries v GLC [1983] 1 All ER 1159

The River Thames is a navigable river over which the public have the right of navigation. This
includes right to pass and repass over the whole width and depth of the river, together with rights to
load and unload goods. Construction of ferry terminals by the defendants that caused silting to the
river, reducing its depth and hence its navigability, was a public nuisance.

This was important in this case, because the claimant had no contractual right to any particular
depth of water in the river, and so could not maintain a claim in either negligence or private
nuisance.

(2) To a class of Her Majesty’s subjects

R v Rimmington; Goldstein [2006] 1 AC 459

The defendant sent 538 separate letters and packages containing racially offensive material to
members of the public selected by reason of their perceived ethnicity, support of particular causes,
or just randomly selected. He was charged with one count of public nuisance.

Lord Bingham commented that this sort of behaviour (and a number of similar cases over the
previous years involving multiple obscene phone calls, such as R v Johnson [1997] 1 WLR 367) were
obviously highly reprehensible, and may well involve criminal liability. The question though was
whether obscene or racist communications amounted to the offence of public nuisance. At [37]:

“To permit a conviction of causing a public nuisance to rest on an injury caused to separate
individuals rather than on an injury suffered by the community or a significant section of it
as a whole was to contradict the rationale of the offence and pervert its nature…”

Applying that to the facts, sending the letters etc lacked the essential ingredient of common injury to
a section of the public. So, for example, public nuisance does not apply either to separate and
individual telephone calls, no matter how persistent or vexatious.

Attorney General v PYA Quarries Ltd [1957] 2 QB 169

Defendant operated a quarry. Its operations included blasting, which generated noise, vibrations,
dust, stones and splinters which affected people living nearby. This was in a rural area. There were
30 houses nearby that were affected.

The test is whether the nuisance:

“… is so widespread in its range or so indiscriminate in its effect that it would not be

reasonable to expect one person to take proceedings on his own responsibility to put a stop
to it, but it should be taken on the responsibility of the community instead.”

This is a question of fact, so there is no defined minimum number of people who need to be
affected.

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(3) Special Damage

Anon YB 27 Hy VIII Mich pl 10 (1536) Fitzherbert J

Said that a member of the public could sue for a public nuisance if they could show that they had
suffered particular damage over and above the ordinary damage suffered by the public at large.

Benjamin v Storr (1874) LR 9 CP 400

The claimant operated a coffee house in Covent Garden in London. The defendant parked his horses
and carts outside the row of shops that included the claimant’s coffee house.

Held: the claimant could prove special damage over and above the other shop owners, because his
customers stopped coming because of the smell of the horses.

Tate & Lyle Industries v GLC [1983] 1 All ER 1159

Defendants built ferry terminals on the River Thames that caused siltation to the river. This
particularly affected the claimant, who operated a sugar refinery on the bank of the Thames. The
claimant had a jetty which it used for loading and unloading sugar products. The siltation reduced
the depth of the river at the claimant’s jetty, which meant the claimant had to dredge the river to
maintain the right depth of water. The cost of the dredging was special damage enabling the
claimant to sue in public nuisance.

(4) Defendant responsible for the interference

Usually, it is necessary to prove the interference (noise, smells etc) was generated by the
defendant’s activities.

Dymond v Pearce [1972] 1 All ER 1142

The lorry parked on the dual carriageway.

Held on the facts the sole cause of the accident was the motorcyclist’s negligence in not paying
attention, so the nuisance created by the lorry was not the cause of the collision. No liability.

Defence of Statutory Authority

Allen v Gulf Oil Refining Ltd [1981] AC 1001

See discussion on defences to private nuisance.

The defendant constructed an oil refinery extending to 450 acres at Milford Haven pursuant to
powers given by the Gulf Oil Refining Act 1965. The claimant lived nearby, and sued in private and
public nuisance based on odours, vibration, noise and waste gases from the refinery.

Lord Wilberforce:

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 “It is now well settled that where Parliament by express direction or by necessary implication
has authorised the construction and use of an undertaking or works, that carries with it an
authority to do what is authorised with immunity from any action based on nuisance.

 The right of action is taken away (see Hammersmith and City Railway Co v Brand
(1869) LR 4 HL 171 at 215 per Lord Cairns).
 To this there is made the qualification, or condition, that the statutory powers are
exercised without ‘negligence’, that word here being used in the special sense so as
to require the undertaker, as a condition of obtaining immunity from action, to carry
out the work and conduct the operation with all reasonable regard and care for the
interests of other persons (see Geddis v Proprietors of the Bann Reservoir (1878) 3
App Cas 430 at 455 per Lord Blackburn).
 It is within the same principle that immunity from action is withheld where the terms
of the statute are permissive only, in which case the powers conferred must be
exercised in strict conformity with private rights (see Metropolitan Asylum District
Managers v Hill (1881) 6 App Cas 193).”

Section 5 of the Gulf Oil Refining Act 1965 authorised the compulsory purchase of land “… for the
construction of a refinery”. It was held that this expressly or impliedly carried with it authority to
operate the refinery when it was constructed. It followed that Gulf Oil were entitled to statutory
immunity for any nuisance which was an inevitable result of constructing and operating a refinery.

The defendant did not necessarily have immunity for operating the refinery it in fact built. It was for
Gulf Oil to prove that any nuisances caused by the operation of the actual refinery were inevitable
consequences of operating a refinery. While Gulf Oil had immunity for what was inevitable, it had a
potential liability for any nuisances going beyond that.

Tate & Lyle Industries v GLC [1983] 1 All ER 1159

The GLC built ferry terminals on the River Thames under the authority of the London County Council
(Improvements) Act 1962, s. 17, which permitted it to “execute … works”.

Held: this did not give the defendant a complete defence of statutory authority. The evidence was
that if the defendant had taken expert advice it would have been advised to adopt a different design
for the terminals which would have only created about 25% of the siltation. Statutory authority only
provides a defence in respect of interference “that was inevitable”, which was 25% of the silting, and
not for expense caused by the particular design chosen by the defendant. The defendant was liable
for 75% of the dredging costs.

Remedies

These can include:

(a) Damages, for the special damage the claimant can prove;
(b) Injunctions to restrain the nuisance.

It is quite common to grant an injunction to restrain any continuing nuisance, together with an
inquiry into the damages payable for the past nuisance.

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Contrast between Private and Public Nuisance
Private Nuisance
Civil liability only
Claimant can be the only person affected
Interference with the claimant’s use or
enjoyment of their land
Claimant must have an interest in land affected
by the interference
Nuisance arises from the use of the defendant’s
land
Prescription defence on 20 years’ actionability
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Public nuisance
Criminal offence, but also possible civil liability
Requires a class or section of the public to be
affected
Special damage required
Interest in land is not required
May arise from the defendant’s use of land, but
might be nothing to do with land owned or
occupied by the defendant, such as
obstructions of canals or roads
Prescription is not a defence, because this is
nuisance to the community (including, but not
only, the claimant)